Legal Report, April 2017

Hadeed, a County Attorney for Flagler County, and McLaughlin, a County Commissioner, were the targets of unsuccessful ethics complaints. One common allegation in both complaints was that the County Attorney provided advice to the Board of County Commissioners, who accepted his recommendation, that public funds be expended to defend the Commissioners and the County Attorney against litigation. Upon dismissal of the ethics complaints, both the County Commissioner and the County Attorney requested that the Commission on Ethics award them attorney’s fees and costs under § 112.317(7), F.S. This statute provides for an award of attorney's fees and costs against persons who knowingly file false ethics complaints against public officials and employees, provided certain parameters are met. The County Commissioner and County Attorney alleged that the complaints were filed maliciously to injure their reputations via knowingly false allegations. The Commission on Ethics denied the requests for attorney’s fees and costs, and this appeal followed.

Public officials are entitled to recover attorney’s fees and costs when: 1) the complaint was made with a malicious intent to injure the official's reputation; 2) the person filing the complaint knew that the statements made about the official were false or made the statements about the official with reckless disregard for the truth; and 3) the statements were material to the alleged ethics violation. Amidst the hundreds of pages of inflammatory, disparaging, and conclusory allegations in the complaints, the Commission found just three (3) were material to possible ethics violations: 1) the County Attorney sought Commission approval for a publicly-funded legal defense for Commissioners and himself; 2) the County Commissioner who was the subject of the ethics complaint voted favorably for a publicly-funded legal defense for himself and others; and 3) the County Attorney was involved in defending a lawsuit against the County. The question turned on whether the factual allegations are false. They are not. Accordingly, there are no false allegations of fact in the complaints that are material to a violation of the Code of Ethics to support a request for attorney’s fees and costs. So long as the allegations are true and material, fees and costs are not recoverable. The statute is narrowly-drawn and allows recovery only in very limited situations; it does not permit recovery where knowingly false allegations are maliciously made to injure a public official's reputation on matters immaterial to an ethics violation. For these reasons, the Commission on Ethics’ denial of attorney’s fees and costs was upheld.

2. AGO 2017-03 (April 4, 2017)Municipal Charter Amendment.

The Florida Attorney General addressed whether a city charter may be amended by referendum to include language “which results in the mandatory denial of certain development orders” and which requires that “local comprehensive plan amendment[s]” be implement only pursuant to “a vote arising from the initiative or referendum process”. Section §163.3167(8)(a), F.S. prohibits the use of initiative or referenda processes in regard to any development order, and Section 163.3167(8)(b) further prohibits the use of initiative or referenda processes in regard to any local comprehensive plan amendment or map amendment unless it is expressly authorized by a local government charter that was in effect on June 1, 2011. Section 163.3167(8)(b) provides that a general charter provision allowing for an initiative or referendum process is not sufficient. The Attorney General concluded that should the charter be amended as proposed, the outcome would be a clear violation of state statute.

The Florida Attorney General answered two questions regarding public code enforcement hearings, which are considered quasi-judicial hearings. The first question was whether § 286.0114, F. S. required members of the public to be given a reasonable opportunity to be heard at such hearings. Under the express exception in § 286.0114(3)(d), the public does not have a right to comment during code enforcement hearings where a special magistrate is acting in a “quasi-judicial capacity.” The second question was whether §162.07(4), F.S. required that orders of a code enforcement special magistrate be announced at a public hearing instead of merely through issuance of a written order. The Attorney General answered this question in the affirmative, opining that because the statutory provisions require the code enforcement board to present the outcomes of code enforcement hearings at a public hearing of the board, it is most consistent to implement a process whereby the special magistrate similarly presents the outcomes of code enforcement hearings at a public hearing of the special magistrate.